Citation Nr: 9918868
Decision Date: 07/09/99 Archive Date: 07/20/99
DOCKET NO. 96-12 987 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas
THE ISSUE
Entitlement to service connection for residuals of traumatic
injury of the jaw.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Ramon Lao, Associate Counsel
INTRODUCTION
The veteran had active service from September 1972 to
September 1974.
This appeal arose from a September 1995 RO rating decision,
which denied the veteran's previously entitled claim of
service connection for a fracture of the jaw.
The appellant's claim was previously before the Board of
Veterans' Appeals (Board), and was the subject of its July
1997 Remand order. The appellant's claim is ready for
appellant review as the Board is satisfied with the RO's
subsequent development and adjudication.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The probative medical evidence is in equipoise as to
whether the veteran's service incurred non-displaced or non
fracture of the right zygoma and related damage to maxillary
anterior teeth is related to post-service findings of
atrophic mandibular ridge, currently diagnosed as atrophic
mandible or right sided accelerated atrophy.
CONCLUSION OF LAW
The evidence in support of the veteran's claim tends to show
that a non-displaced or fracture of the right zygoma and
related damage to maxillary anterior teeth was present
coincident with service and continuity of related
symptomatology thereafter. 38 U.S.C.A. §§ 1110, 1131, (West
1991 & Supp. 1998); 38 C.F.R. §§ 3.303(a)-(b)-(d) (1998)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question that must be resolved in this matter
is whether the veteran has presented evidence that the claim
is well grounded. Under the law, it is the obligation of the
person applying for benefits to come forward with a well-
grounded claim. 38 U.S.C.A. § 5107(a); Anderson v. Brown, 9
Vet. App. 542, 545 (1996). A well grounded claim is "[a]
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
§ 5107(a)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir.
1997). Mere allegations in support of a claim that a
disorder should be service-connected are not sufficient; the
veteran must submit evidence in support of the claim that
would "justify a belief by a fair and impartial individual
that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak
v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and
quantity of the evidence required to meet this statutory
burden depends upon the issue presented by the claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).
The United States Court of Appeals for Veterans Claims
(Court) has held that, in general, a claim for service
connection is well grounded when three elements are satisfied
with competent evidence. Anderson, supra; Epps v. Gober, 126
F.3d at 1468, and Caluza v. Brown, 7 Vet. App. 498 (1995).
First, there must be competent medical evidence of a current
disability (a medical diagnosis). Rabideau v. Derwinski, 2
Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992). Second, there must be evidence of an
occurrence or aggravation of a disease or injury incurred in
service (lay or medical evidence). Cartwright v. Derwinski,
2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465
(1994). Third, there must be a nexus between the in-service
injury or disease and the current disability (medical
evidence or the legal presumption that certain disabilities
manifest within certain periods is related to service).
Grottveit v. Brown, 5 Vet. App. at 92-93; Lathan v. Brown, 7
Vet. App. 359 (1995).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1998).
If a chronic disease is shown in service, subsequent
manifestations of the same chronic disease at any later date,
however remote, may be service connected, unless clearly
attributable to intercurrent causes. 38 C.F.R. § 3.303(b)
(1998). However, continuity of symptoms is required where
the condition in service is not, in fact, chronic or where
diagnosis of chronicity may be legitimately questioned. 38
C.F.R. § 3.303(b) (1998).
The Court has further held that the second and third elements
of a well grounded claim for service connection can also be
satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence
that a condition was "noted" during service or an
applicable presumption period; (b) evidence showing post-
service continuity of symptomatology; and (c) medical or, in
certain circumstances, lay evidence of a nexus between the
present disability and post-service symptomatology. See
38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-
97 (1997). For the limited purpose of determining whether a
claim is well grounded, the Board must accept evidentiary
assertions as true, unless those assertions are inherently
incredible or when the fact asserted is beyond the competence
of the person making the assertion. King v. Brown, 5 Vet.
App. 19 (1993).
BACKGROUND
The veteran's September 1972 entrance examination reveals no
abnormalities that are referable to his claim.
A September 1973 service medical record (SMR) reveals that
the veteran was hit in the face with a baseball bat, which
radiographic evidence revealed as a fracture on the right
zygoma, not displaced. Related September 1973 X-ray findings
noted no radiographic evidence of significant pathology.
A September 1973 service dental record reveals that the
veteran underwent a periodontal examination that revealed
generalized acute necrotizing ulcerative gingivitis with
local extensive areas of ulcerations on the right side
believed to be related to trauma. The veteran was noted to
have lymphadenopathy and was without sleep.
October 1973 SMR entries reference an alleged assault, with
noted diagnoses of mild concussion; laceration on the right
cheek and broken teeth that were wired.
October 1973 service dental records reveal that tooth number
8 was extracted, teeth numbers 7, 9, and 10 were splintered
with essing wiring, and eight days later satisfactory healing
was demonstrated, with no pain during November 1973.
From April to June 1974, service dental records reflect
extensive treatment of the veteran. The veteran's August
1974 discharge examination notes that he bled excessively
after tooth extraction-occasionally, NS (not significant); he
had severe tooth or gum trouble-front tooth missing since
1973, treated at WBAMC; he had a head injury-right jaw that
was broken in 1973, treated at WBAMC, NS; and broken bones-
right jaw as above.
An RO March 1975 Dental rating sheet includes a notation that
on September 1973 the veteran had suffered dental trauma to
teeth # 6-7-8-9-10 and 11, and was rated for outpatient
treatment.
The veteran's February 1995 statement includes his reference
to prior surgeries and related headaches.
A June 1995 VA treatment report notes that the veteran
underwent recent surgery for a jaw implant (status post jaw
trauma). The veteran was noted to have dentures that hurt.
Examination findings included dentures with malocclusion;
pupils were equal, round, regular, reactive to light and
accommodating, with extraocular muscles intact; and noted
tenderness over the temporomandibular joint, with difficulty
opening his mouth, with no crepitus or trismus.
A VA neurologists submitted a February 1996 letter in support
of the veteran's claim, noting that the veteran had been a VA
Neurology patient for sometime, and referred to events that
related to 1973, including multiple dental surgeries and
difficulties with wearing appliances secondary to low
alveolar ridge. He further noted that the veteran's pain is
managed by medication, with little relief, and that the
veteran is deserving of compensation for pain associated with
the various operations.
The veteran's March 1996 statement included his March 1975
Dental rating sheet, and VA records of neurology treatment
from August 1994 to April 1995, all of which included
extensive reports of treatment that are referable to mandible
abnormalities, and related surgical procedures.
A May 1996 VA neurology treatment report reveals the
veteran's complaint of difficulties with dentures; the
veteran's jaw trauma during the 1970s and the need for
mandible and facial X-rays.
An RO July 1996 request for July 1996 X-rays notes that the
VAMC did not have X-rays or appointments for requested date.
Subsequent to the Board's June 1997 Remand, VA treatment
reports from June 1995 to August 1997, including findings
from a November 1996 VA examination, were added to the
record. The records generally refer to the veteran's service
related trauma to the jaw, increasing complaints of
headaches, oral surgeries in 1994 and 1997 and the related
progress notes. Pertinent entries from the November 1996 VA
examination include the veteran's complaints of lower jaw
pain since he had a "mandible fracture" during service
after which he has lost teeth and has been unsuccessful in
wearing full upper and lower dentures, the last of which were
made during 1994 after hospital admission augmentation. The
veteran also had numbness to his right lower lip; headaches
to the temporal area 2-3 times per week; and difficulty
eating. Pertinent findings upon examination included pain to
the right face on opening; an trophic ridge on the left and
right mandible; noted reduction in the mandibular height;
poor denture fittings; and pain in the right
temporomandibular joint on lateral excursion. Radiographic
evidence revealed augmentation of the mandibular ridge from
the left cuspid to the right third molar; decreased
mandibular height; evidence of right condylar flattening; no
evidence of prior mandible fracture that occurred in 1973,
which the examiner noted would not preclude that the mandible
was fractured since healing over twenty-three years would
eliminate such evidence. The examiner's diagnoses included
atrophic mandibular ridge, especially pronounced on the right
ridge and anterior ridge of the mandible, which may have been
secondary to previous trauma.
The veteran underwent a January 1998 examination during which
time the examiner noted his review of the veteran's RO
folder. The examiner referenced SMR entries referable to
non-displaced or no fracture of the right zygoma and damage
to the maxillary anterior teeth; September 1994 emergent
extraction of tooth 22 and surgical extraction of remaining
teeth, as well as alveoloplasty following removal of the
teeth. The examiner then referenced a subsequent
augmentation of the veteran's right mandible; a November 1994
hospital admission augmentation and related construction of
upper and lower dentures. The examiner's opinions, in
pertinent part, included a finding of no pre-service evidence
of jaw disorders; the etiology of the veteran's jaw disorder
was related to trauma to the right zygoma, with no noted
trauma to the mandible, trauma to the maxillary anterior
teeth, which were treated during service; the veteran was
presently edentulous, with continued severe atrophic right
mandibular ridge following augmentation, and no noted pain or
apparent dysfunction to the temporomandibular joints on
examination as he was able to open without a problem, but was
unable to were dentures; that there was an unlikely
relationship between his service trauma and his problems
wearing lower dentures and atrophy since his lower jaw
atrophy is secondary to normal atrophy following loss of
teeth, during which time use of partial denture against the
upper natural dentition caused an acceleration of the bone
loss; the veteran's current problems with atrophic mandible
or right sided accelerated atrophy is a result of the
veteran's wearing a lower partial denture against upper
natural teeth, which is not unexpected and unrelated to
problems before or during service and is likely related to a
continuous problem that the patient had in wearing a lower
partial against upper teeth since service discharge. The
examiner concluded by noting that this was speculation on his
part as he had not seen the particular partial denture, and
that the appearance of the ridge did appear to be secondary
to wearing a lower partial against upper natural teeth.
ANALYSIS
Initially, the Board notes that the veteran's claim is found
to be well grounded within the meaning of 38 U.S.C.A. §
5107(a). That is, he has presented a claim, which is not
inherently implausible. See Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990). However, the establishment of a plausible
claim does not dispose of the issue in this case. The Board
must review the claim on its merits and account for the
evidence that it finds to be persuasive and unpersuasive and
provide reasoned analysis for rejecting evidence submitted by
or on behalf of the claimant. Gilbert v. Derwinski, 1 Vet.
App. 49 (1990). To deny a claim on its merits, the evidence
must preponderate against the claim. Alemany v. Brown, 9
Vet. App. 518 (1996), citing Gilbert, at 54.
Furthermore, after reviewing the record, the Board is
satisfied that all relevant facts have been properly
developed. The record is devoid of any indication that there
are other records available which might pertain to the issue
on appeal. In this regard, the Board notes that the veteran
has not indicated that there are other known witnesses or
additional evidence pertaining to his claimed original injury
in service that has not already been identified. Further the
only identified treatment records pertaining to residuals of
traumatic injury of the veteran's jaw consists of VA
examination reports that are of record and service medical
records. Thus, no further assistance to the veteran is
required to comply with the duty to assist him, as mandated
by 38 U.S.C.A. § 5107(a).
In order to establish service connection for a disability,
there must be objective evidence that establishes that such
disability either began in or was aggravated by service. 38
U.S.C.A. § 1110. If a disability is not shown to be chronic
during service, service connection may nevertheless be
granted when there is continuity of symptomatology post-
service. 38 C.F.R. § 3.303(b). Regulations also provide
that service connection may be granted for a disease
diagnosed after service discharge when all the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d). A determination of service connection
requires a finding of the existence of a current disability
and a determination of a relationship between that disability
and an injury or disease incurred in service. Watson v.
Brown, 4 Vet. App. 309, 314 (1993).
In sum, the Board observes that evidence in support of the
veteran's claim includes unambiguous evidence of service
incurred trauma that resulted in either a non-displaced or no
fracture of the right zygoma, which in-turn resulted in the
extraction of numerous teeth and the use of dentures
following service discharge; a March 1975 RO grant of service
connection for dental treatment; VA outpatient treatment
reports reflective of numerous dental surgeries or related
augmentation and resulting complaints of pain and headaches
caused by dentures and mandible abnormalities; a February
1996 letter from a VA neurologists submitted in support of
the veteran's claim, wherein the veteran's continued
complaints of pain as associated with wearing appliances was
noted to be secondary to low alveolar ridge; and noted
findings and diagnoses coincident with a November 1996 VA
examination, wherein it was noted that the veteran's atrophic
mandibular ridge, which was especially pronounced on the
right ridge and anterior ridge of the mandible, may have been
secondary to previous trauma. Thus, consistent with 38
U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303(a)-
(b)-(d) (1998), the evidence in support of the veteran's
claim tends to show that the disease was present coincident
with service, and continuity of related symptomatology
thereafter. Savage v. Gober, supra.
The Board finds the key evidence in this case is the
veteran's January 1998 VA examination. That examiner
addressed whether there was a direct cause and effect
relationship between the in service trauma and current
disability not already service connected. He concluded that
there was no such direct relationship. Specifically, he
correctly pointed out that there was no evidence of mandible
fracture in service. That does not end the matter. The
examiner went on to note that the veteran current problems
stemmed from lower jaw atrophy that is secondary to the
normal atrophy following the loss of teeth. This resulted in
the use of a partial denture against the upper natural
dentition that caused an acceleration of bone loss. Thus,
the Board finds that while the current disability did not
directly stem from the inservice trauma, it was caused by the
effects of the wearing of dentures to replace the teeth that
were loss due to the inservice trauma. Accordingly, service
connection is warranted for the atrophic mandible and right-
sided accelerated atrophy, and the residuals of these
disabilities.
ORDER
Entitlement to service connection for an atrophic mandible
and right-sided accelerated atrophy, and the residuals of
these disabilities, is granted.
Richard B. Frank
Member, Board of Veterans' Appeals